Tuesday, 1 November 2011

Another Front on the Euro-Fight

I have never considered myself anti European: I am pro free trade, open markets, and plain dealing. I am however against taxation without representation, socialism, and grand 'liberal' projects conducted duplicitously.

I am also strongly in favour of the Common Law, and hostile to the Code Napoleon, as any Englishman should be: Nelson and Wellington didn't take the field entirely for their own amusement. As any well-traveled businessman will tell you, that's how the world of international commerce sees things too: for choice, almost wherever you go, big contracts** are drawn up under Common Law precepts and made subject to the jurisdiction of the London or New York courts (or, in the energy biz, Harris County Texas for some oily matters). Naturally, this is as good for the English legal profession as is the financial dominance of the City for the UK economy in general - perhaps more so, since there is no downside whatever. Indeed, it probably helps keep the City where it is: Mr CU will be able to tell us more.

And ... here we go again. The duplicitous ones have decided they want to squeeze out the commercial law of universal choice, by promoting a doctrine of a single European contract law - civil code model, naturally.

Mike Bisby runs a small online business from his home in Hull selling cat scratching posts … Bisby would like to expand to sell his wares in other EU countries. But he is prevented from doing so by a complicated legal regime … “the practical difficulties make it near impossible for small businesses like mine to sell abroad," Bisby said. The EU has long been keen to get rid of the obstacles facing the likes of kitforcats.com …

Aside from the fact that this is utter bollocks, how do we suppose the touching story of little Mr Bisby and his oh-so-adorable, worthy but hard-pressed little enterprise brought itself to the attention of the Guardian? Is his a cause célèbre in South Yorkshire ? has Lord 'Mouth of the Humbug' Prescott been lobbying for him in Brussels ? do they speak of little else in Strasbourg ?

Or has it been drummed up by a PR firm, fronting for one of those sugary, pernicious Euro-campaigns ?

I think we can guess. Man the ramparts, chaps, here they come again.

ND

** I am of course aware of the very large Russian gas sales contracts to European buyers that are famously not written under common law. Much good it does them !

This argument encapsulates everything that ius wrong about the EU from the British perspective.

Fact is that the French and the Germans set up the EU specifically because they feared perceived Anglo-American hegemony and so that great democrat de Gaulle (ha!) colluded with some former Hitler youth members to create the EU with the goal of keeping the English speaking world nad their "foreign" ideas at bay. Common-law is one of the ideas that preferred to replace with the ideas of a former European dictator and master of the known universe known as Napolean. Meanwhile they suck up to the Chinese to sell their souls to that particular devil under the guidance of "former" Maoist Barosso. Next week it will be putting French nuclear weapons on top of ESA launchers.

I do wish that people would stop banging on about 'common law'. the general principles of English contract, offer, acceptance, consensus in idem and valuable consideration (let's set aside the horrors of equity and its hell creature estoppel) may very well apply to the creation of a contract but that will be subject to all kinds of statutory caveats, the limitation act, the various mad cap arbitration agreements, the unfair contract terms act, the contracts, rights of third parties act, hell even the maritime insurance act 1906 could be involved.

And at any rate, the common law is not some happy hand shake and gentleman’s code that is somehow pure and unsullied by the messing of wonks, the common is what the Judiciary say it is by virtue of their judgments (anyone who thinks judges do not make law need only look at the history of product liability in the states in 1916 and then in the UK in 1932) and the Judiciary is a pillar of the state and, until recently, had various members sitting in parliament waving through statute.

Harmonising legal services across Europe is surely no bad thing, greater competition and choice for consumers rather than the obligatory closed shop. At the same time changing the way law firms operate in the UK provides a good spring board for the UK to gobble up that market (just look at the huge global insurance mergers, 2 just this week).

The only thing to worry about a general European contract law is that it would not be done in a ‘common law’ loser pays fashion and thus someone wronged would be forking out a small fortune to try to get back to some semblance of the pre contractual position.

"The only thing to worry about a general European contract law is that it would not be done in a ‘common law’ "

That, surely, is the crux of the matter. No surprise that civil law is the approach of choice in Russia, China and many other nations where thet state wields unmitigated power. The fact that in civil law the centralised state sets and codifies all laws and then uses agents of the state both to investigate and prosecute those believed to be guilty of crimes against the state is clearly of benefit to those that govern without the participation of the people.

Common-law countries benefit from the independent judiciary and more importantly an independent jury that can, in flagrant disregard of the evidence put to it, declare someone innocent if they so wish.

however, the artist in me is forced to point out that I was already going to use Humberside once in that sentence (well, in its derivative form Humbug) and thus on aesthetic grounds could not use it a second time

I know Hull well, and have indeed been forced to share a railway station waiting-room with said Prescott, not an experience to lighten the journey

Alexp76 - the evil Heathian 'Humberside' was abolished in 1996. The name 'Humberside' is retained by the police and used by the BBC (of course). Hull is actually in the East Riding of Yorkshire. Hull is, though, administered separately as a unitary authority.